JUDGMENT Kailash Gambhir, J. 1. By way of the present appeal, the appellant seeks to challenge the judgment dated 2.12.2006 passed by Ms. Anju Bajaj Chandna, learned Additional District Judge, Delhi, thereby dismissing the divorce petition filed by the appellant under Section 13(1)(ia) & (ib) of the Hindu Marriage Act. 2. The brief facts of the case relevant for deciding the present appeal inter-alia are that the marriage between the parties was solemnized on 4.12.1980 in Delhi according to Hindu rites and ceremonies. After their marriage the party cohabited as husband and wife till 1981. As per the appellant the respondent had left the matrimonial home on 9.7.81 without any reasonable excuse and all efforts made by the appellant to bring back the respondent went in vein. That on 2.11.1981, a male child was born out of the wedlock. The appellant had even deputed his maternal uncle and Sh. Shiv Kumar Mathur, through whom the said marriage was arranged, to bring back the respondent to the matrimonial home but they were not successful in their efforts. The respondent had served legal notice dated 21.04.1982 making request to the appellant to take her back. The respondent had filed a petition under Section 9 of the Hindu Marriage Act, seeking restitution of conjugal rights and vide order dated 29.12.82, consent decree was passed by the Court of Ms. Usha Mehra, the then Additional District Judge, Delhi. As per the said consent decree the appellant had agreed to go to the house of the respondent to bring her along with the child on 31.10.82 at 11 A.M. As per the appellant he went to the house of the respondent along with his two relatives and Advocate Mr. S.N. Mittal to bring the respondent back to her matrimonial home but the respondent refused to join the matrimonial home. On the refusal of the respondent to join the company of the appellant, the appellant was compelled to file a petition seeking dissolution of marriage by decree of divorce under Section 13(1) (a) & (b) of the Hindu Marriage Act. The said petition filed by the appellant was dismissed by the Court of Shri R.C. Jain, the then Additional District Judge, Tis Hazari, Delhi on 28.1.1987. The said petition filed by the appellant was dismissed by the Court of Shri R.C. Jain, the then Additional District Judge, Tis Hazari, Delhi on 28.1.1987. Separate petition under Section 125 Cr.P.C. seeking grant of maintenance was also filed by the respondent which was heard and finally disposed of by Shri S.K. Tandon, the then Metropolitan Magistrate, Delhi vide order dated 17.3.1987. The appellant had preferred an appeal against the said order and the said appeal was disposed of by the court of Shri Jaspal Singh, the then Additional District Judge vide order dated 17.3.1987. After some gap the appellant had filed a second divorce petition seeking dissolution of the marriage under Section 13 1(ia) & 1(ib) of the Hindu Marriage Act 1955, and the said petition was dismissed by the Court of Shri S.M. Chopra, the then Additional District Judge, Delhi vide order dated 14.5.1984. Challenging the said order dated 5.84 the appellant filed a Civil Revision before this Court and the said revision petition was dismissed vide order dated 3.7.1986 on the ground of non maintainability, the order being appealable under Section 28 of the Hindu Marriage Act. Without filing any appeal against the order dated 14.9.94 of the learned District Judge or challenging the order of dismissal passed in Civil Revision Petition No. 1040/94, the appellant had filed, yet, another divorce petition bearing HMA 79/2006 and the said petition was dismissed by the Court of Ms. Anju Bajaj Chandana vide order dated 2.12.2006 which order is under challenge in the present appeal. 3. The chief contention raised by Shri Dinkar Singh counsel for the appellant is that the principle of rest judicata cannot be made applicable to the ground of desertion, the same being a continuing offence. Elaborating his submission further counsel contended that vide earlier judgment dated 28.1.1987 finding by the court was given in respect of the desertion for a specific period of 9.7.81 till 10.8.83 and such a finding cannot come in the way of the appellant to seek a divorce on the same ground claiming desertion for another period of two years preceding the date of filing of the petition, the desertion being a continuous nature of matrimonial offence. Another contention raised by the counsel for the appellant is that marriage between the parties has been irretrievably broken down as there is a continuous separation between them for over a long period of 25 years. Counsel thus contended that matrimonial discord between the parties is beyond repair and practically the marital relationship between the two parties more or less has become a fiction and nothing can be achieved in continuation of such a dead marriage. Counsel thus claimed that the appellant is entitled for grant of decree of divorce, at least on the ground of desertion as envisaged under Section 13 1(i-b) of the Hindu Marriage Act. In support of his arguments counsel for the appellant has cited following judgments: 1.: (2007)4SCC511 Samar Ghosh v. Jaya Ghosh 2.(2007)2SCC263 Rishikesh Sharma v. Saroj Sharma 3. AIR2006SC1675 Naveen Kohli v. Neelu Kohli 4. AIR2005SC3297 Durga Prasenna Tripathy v. Arundhati Tripathy 5. AIR2006SC1662 Vinita Saxena v. Pankaj Pandit 6. MANU/RH/0038/2007 Shyam Lal v. Smt. Leelawati 7. [1956]1SCR838 Bipin Chander Jaisingbhai Shah v. Prabhavati 4. Refuting the said contentions, Mr. M.S. Mishra counsel for the respondent raised a preliminary objection on the very maintability of the 3rd divorce petition filed by the petitioner. Counsel sought to urge that earlier on the same grounds two divorce petitions filed by the petitioner agitating the same ground were dismissed on merits and thereafter the third divorce petition filed by the petitioner on the same very grounds was barred by the principle of rest judicata as envisaged under Section 11 of the C.PC and thereforee, rightly the said petition was dismissed by Ms. Anju Bajaj Chandana, learned Additional District Judge, Delhi vide order dated 2.12.2006. Strengthening his arguments counsel further contended that the first petition was also filed on the ground of cruelty and desertion, which was heard and decided by the court of Shri R.C. Jain, and the same was dismissed vide order dated 28.1.1987 clearly holding that the appellant had failed to prove the ground of cruelty or desertion as claimed by him in his divorce petition. In the said judgment the court also observed that the appellant had failed to stick to the terms of compromise as agreed upon by him in the proceedings filed by the respondent under Section 9 of the Hindu Marriage Act. In the said judgment the court also observed that the appellant had failed to stick to the terms of compromise as agreed upon by him in the proceedings filed by the respondent under Section 9 of the Hindu Marriage Act. The said court also clearly observed that the appellant was guilty of willful conduct of not bringing back the respondent and the child, despite giving a consent to bring them back during the course of Section 9 HMA proceedings. The Court also observed that intention was on the part of the respondent to bring cohabitation permanently to an end. The conduct of the appellant was such that he was not really interested to resume cohabitation with the respondent the court held. The said order of dismissal of the divorce petition attained finality as no appeal against the said order was preferred by the appellant. It is further submitted by the counsel for the respondent that after a lapse of about 10 years the appellant filed yet another divorce petition bearing No. HMA 600/93 on the same grounds and the said petition was also dismissed by the Court of Shri S.M. Chopra, the then Additional District Judge, Delhi and the said order also attained finality as the same was not challenged by the appellant by way of filing an appeal thereto. Without there being any change of circumstances, the appellant had the audacity to file three petitions on the same ground of desertion and cruelty and thereforee, the submission of the counsel for the respondent is that the learned ADJ has rightly dismissed the third petition filed by the petitioner, the same being hit by the principles of rest judicata. Counsel for the respondent further submitted that no fresh ground of desertion was raised by the appellant in his subsequent petitions and even if the ground of desertion is taken to be continuing offence, then the same can be raised only when a fresh cause of action arises between the parties. Counsel for the respondent also submitted that it was clearly observed by the Court of Shri R.C. Jain, that the appellant himself was guilty of creating circumstances for not bringing back his wife despite the consent decree passed by the Court of Ms. Usha Mehra, the then Additional District Judge, Delhi. Counsel for the respondent also submitted that it was clearly observed by the Court of Shri R.C. Jain, that the appellant himself was guilty of creating circumstances for not bringing back his wife despite the consent decree passed by the Court of Ms. Usha Mehra, the then Additional District Judge, Delhi. Counsel for the respondent also took an exception to the stand taken by the appellant that the marriage between the party has broken down irretrievably or that the substratum of the marriage has become totally dead. Counsel for the respondent stated that the said ground of irretrievable break down of the marriage between the parties is not a ground of divorce under Hindu Marriage Act 1955 and thereforee, no decree of divorce can be claimed on the said ground under the said Act. 5. I have heard learned Counsel for the parties at a considerable length and have perused the records. Desertion was not a ground of divorce before the 1976 amendment in the Hindu Marriage Act, though the same was a ground for judicial separation and which ground continue to exist even after the amendment. In Alwar v. Sri Devi: AIR2002SC88 the Honble Supreme Court has laid down two essential ingredients constituting desertion which are (i) the factum of separation; (ii) the intention to bringing cohabitation permanently to an end; animus deserendi. "Desertion" is a total repudiation of the marriage between the parties. It is the intentional abandonment of one spouse by the other without reasonable cause. So far the deserting spouse is concerned, two essential conditions must be there, namely, (i) the factum of separation and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, two elements are essential so far as deserted spouse is concerned (i) the absence of consent, and(2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home. To form the necessary intention aforesaid, no ground of physical or factual separation how long the same may be, would constitute desertion unless a requisite animus desirendi ie., intention to bring cohabitation permanently to an end also co-exists. Thus, mere desertion is not sufficient as there must be animus deserendi so as to establish desertion. To form the necessary intention aforesaid, no ground of physical or factual separation how long the same may be, would constitute desertion unless a requisite animus desirendi ie., intention to bring cohabitation permanently to an end also co-exists. Thus, mere desertion is not sufficient as there must be animus deserendi so as to establish desertion. The Supreme Court in the case of Bipin Chandra v. Prabhavati: [1956]1SCR838 held that the offence of desertion commences when the fact of separation and the animus deserendi co-exist, but it is not necessary that they should commence at the same time. The de- facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time. It is also a settled legal position that the desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave home, the desertion cannot be attributed to the spouse who was forced by the conduct of the other spouse to leave the home and live separately. The desertion is thus a matter of inference to be drawn from the facts and circumstances of each case. .6. In the facts of the present case the appellant has alleged desertion on the part of the respondent since 9th July, 1981 from which date as per the appellant, the respondent did not join the appellant and started living separately. In the very first petition filed by the appellant vide HMA No. 457/1983 the same very allegation of attributing desertion on the part of the respondent was made by the appellant and it would be relevant to reproduce para 4 of the said petition. .4. That on 9.7.1981, the respondent Smt. Kumkum left the petitioner house and deserted the petitioner by going away with her mother on the pretext that she wanted to go for a week ten days and on her which statement/assurance she was given a cordial send off, as usual and the respondent carried away with her quietly, her jewellery and ornaments and costly clothes. But her subsequent conduct showed and proved beyond any doubt that this was a well planned and pre-meditated move on her behalf in consultations/connivance with her parents etc. But her subsequent conduct showed and proved beyond any doubt that this was a well planned and pre-meditated move on her behalf in consultations/connivance with her parents etc. Thus she left the petitioners house i.e. the matrimonial home with a view to deserting the petitioner and without any just or reasonable cause and this act of desertion on the part of the respondent Smt. Kumkum was thus entirely against the petitioners wishes and consent. 7. That when the respondent did not return by 23.7.81, the petitioner and his parents telephonically called upon the respondent and her parents to send her back, as she had already over stayed the period of for which she was taken away by her mother Smt. O.P. Saksena on 9.7.81, but the respondent and her people stated that she would be sent later on. Subsequently, when further demands for her return were made, her parents avoided sending her back on one or the other false pretexts like - she would be sent after sometime as she was being given special treatment by the local doctor; that she would be sent after Teej; then that she would be sent after Raksha Bandhan. .8. On 12.9.81 Mrs. O.P. Saksena, mother of the respondent and her sister Miss Sweety came over to the petitioners house and asked for Kumkum Jis remaining clothes to be handed over to them. This demanded coupled with the conduct of the respondent and her parents during the intervening period i.e. between 9.7.81 and 12.9.81, created a bona fide doubt about the intentions of the respondent and her parents and so the petitioners parents asked them not to insist on taking away even the remaining cloths of the respondent as that would mean scrapping of ties, between the parties. At this, the mother and the sister of the respondent adopted a very quarrel some attitude and started raising their voice, at which the father of the petitioner had to persuade them not to create a scene and go back without creating any unpleasantness any further. About this incident, in keeping with their habit, they prorogated that they were treated rudely. On 16.10.81 Smt. Kumkum, the respondent telephoned and displayed abusive and obnoxious attitude towards the petitioner and his parents, but the petitioner exercised restraint and was greatly depressed. .9. About this incident, in keeping with their habit, they prorogated that they were treated rudely. On 16.10.81 Smt. Kumkum, the respondent telephoned and displayed abusive and obnoxious attitude towards the petitioner and his parents, but the petitioner exercised restraint and was greatly depressed. .9. That thereafter, after about a week the petitioner further called upon the respondents father to send her back, but he declined the request on the plea that as she was in advanced stage of pregnancy she could not be sent and moreover as per the custom the firs t child would be delivered at their place (respondents parents). That as regards the birth of the male child to the respondent on 2.11.81 (the only one out of the wedlock) was not invited on any ceremonies and came to know of it only through common relatives in a marriage. That thereafter, whenever, the petitioner and his parents made an attempt to visit the child, their attempts were foiled by imposition of pre-conditions like the petitioner should separate from his parents and start living elsewhere etc. which being an absolutely unjust and harsh demand could not be not. That in fact the whole trouble had started immediately after the marriage of the parties hereto , as on or about 8.12.80, the respondent demanded the petitioners salary from him and was being misguided and provoked by the respondents parents and younger sister Miss Sweety, from the very beginning as they had found a gold mine in the petitioner he being the only son of his parents and theirs being a pretty large family. The relatives and servants of the petitioner heard from their own ears that the mother of the respondent had been telling the respondent to insist on separation from has in-laws, even during her stay at the petitioners house, which practice on the part of the parents of the respondent was also very much unlike Hindu Samdhees, and which too was not objected to only with a view to maintaining the family calm and happiness and not to offend the respondent. Even whenever Smt. Kumkum telephoned the petitioner, she insisted that either the petitioner should live separately or accept divorce by mutual consent, failing which she would neither return nor let him live in peace. Even whenever Smt. Kumkum telephoned the petitioner, she insisted that either the petitioner should live separately or accept divorce by mutual consent, failing which she would neither return nor let him live in peace. Seeing this harsh and in human attitude of the respondent and her parents, the petitioner stopped making any further moves for rapproachment & reconciliation and thought that time would prove to be a great heal but it was not to be. That thus after waiting for sometime, when the petitioner found that the matters didnt improve, the petitioner and his parents sent Sh. Sardar Bahadur Bhatnagar, the petitioners maternal uncle and Sh. Shiv Kumar Mathur, through whom this marriage had been arranged to the respondents place at 202 A, Old Gupta Colony on 13.4.82 for making the respondent and her parents see reason and requesting them to send her back to fulfill her matrimonial obligations (although even during her stay at the petitioners place she had not been discharging her matrimonial obligations sincerely, as she would quarrel on one or the other pretext and would not get up in the morning and would be in bed till about 9 A.M. and would not even prepare the petitioners breakfast or lunch or look after him and attend to other household chores), but they were treated very rudely and ultimately they were insulted and asked to quit. The situation had become so explosive, and had these two emissaries of the petitioner not shown and exercised restraint, a skirmish/flight would have taken place - thereafter they telephoned petitioners place to state "Aaindaa Kisi ko naa bhejna, varna hum aur bhi sakhti se pesh aaeinge". After this warning, the petitioner could not dare to approach the respondent and had no option in his extremely dejected and depressed state of mind, but to pray to God Almighty to bestow proper reasoning to the respondent." .10. Dealing with the said contention of the appellant the learned Court of Shri R.C. Jain the then Additional District Judge, Delhi in his judgment dated 28.1.1987 disbelieved the version of the appellant holding the issue in negative against the appellant and in favor of the respondent. Dealing with the said contention of the appellant the learned Court of Shri R.C. Jain the then Additional District Judge, Delhi in his judgment dated 28.1.1987 disbelieved the version of the appellant holding the issue in negative against the appellant and in favor of the respondent. It would be relevant to refer to paras 18 and 19 of the said judgment as under: .On a consideration of the established facts and circumstances it can be safely concluded that the petitioner was not sincerely interested in getting back the respondent in any case, he had made up her mind not to accept back the respondent after 31.10.1982 when he along with a number of other persons visited the house of the respondent to get her back purusnat to the settlement reached in the court of Miss Usha Mehra, Addl.Distt. Judge, Delih. The above conclusion is based on the circumstances that the petitioner had declined to get back the respondent ever since July, 1981 and uptill October, 1982 when the respondent filed a petition for restitution of conjugal rights. He neither visited the respondent nor the newly born child either immediately after the birth of the child or at the time of his Namkaran ceremony though due invitation was extended to him. It appears to me that tough the petiotner had agreed to get back the respondent in the Court of Miss Usha Mehra, Addl. District Judge but in his heart of hear he was not willing to resume co-habitation with the respondent. He is infact himself guilty of the willful neglect of the respondent and the child of the parties. It is, thereforee, difficult to hold that there was any intention on the part of the respondent to bring the co-habitation permanently to an end, while such an intention can be very sell gathered on the part of the petitioner/husband. .11. The petitioner has also failed to prove that respondent was residing at her parents house without his consent and without any reasonab le casue. On the eohter hand, the respondent has led over-whelming evidence to show that the she was compelled to leave the matrimonial home on account of her maltreatment at the hands of the petitioner and his moher who did not lag behind even hitting the respondent when she was at an advanced stage of pregnancy. On the eohter hand, the respondent has led over-whelming evidence to show that the she was compelled to leave the matrimonial home on account of her maltreatment at the hands of the petitioner and his moher who did not lag behind even hitting the respondent when she was at an advanced stage of pregnancy. She has, thereforee, shown a reasonable casue to stay way from the respondent. During the course of proceedings also the respondent has inunequivocal terms express her willingness to join back the petitioner unconditionally but it was the petitioner who refused to do so without justifying his stand. According to the petitioner he was prepared to get back the respondent on 31.10.1982 and no such circumstance or conduct on the part of the respondent or his parents has been poited out, which would justify this attitude of the petitioner. Taking into account the entirety of the facts and circumstances, I am of my considered opinion that the petitioner has failed to prove that the respondent has deserted him within the meaning of Sec.13 (1)(ib) of the Act. The issue is as such answered in negative and against the petitioner. 12. Again in the second divorce petition filed by the appellant being HMA 600/1993 under Section 13(1-A) (ii), 13 (ia) & (ib) of the Hindu Marriage Act, 1955 the appellant reiterated the said allegations in the said petition as would be apparent from para 4 of the petition filed by him, which is reproduced as under: 4. That on 9.7.1981, the respondent Smt. Kumkum left the petitioner house and deserted the petitioner by going away with her mother on the pretext that she wanted to go for a week ten days and on her which statement/assurance she was given a cordial send off, as usual and the respondent carried away with her quietly, her jewellery and ornaments and costly clothes. But her subsequent conduct showed and proved beyond any doubt that this was a well planned and pre-meditated move on her behalf in consultations/connivance with her parents etc. Thus she left the petitioners house i.e. the matrimonial home with a view to deserting the petitioner and without any just or reasonable cause and this act of desertion on the part of the respondent Smt. Kumkum was thus entirely against the petitioners wishes and consent. 13. Thus she left the petitioners house i.e. the matrimonial home with a view to deserting the petitioner and without any just or reasonable cause and this act of desertion on the part of the respondent Smt. Kumkum was thus entirely against the petitioners wishes and consent. 13. That when the respondent did not return by 23.7.81, the petitioner and his parents telephonically called upon the respondent and her parents to sent her back, as she had already over stayed the period of for which she was taken away by her mother Smt. O.P. Saksena on 9.7.81, but the respondent and her people stated that she would be sent later on. Subsequently, when further demands for her return were made, her parents avoided sending her back on one or the other false pretexts like - she would be sent after sometime as she was being given special treatment by the local doctors; that she would be sent after Teej; then that she would be sent after Raksha Bandhan. .14. On 12.9.81 Mrs. O.P. Saksena, mother of the respondent and her sister Miss Sweety came over to the petitioners house and asked for Kumkum Jis remaining clothes to be handed over to them. This demanded coupled with the conduct of the respondent and her parents during the intervening period i.e. between 7.9.81 and 12.9.81, created a bona fide doubt about the intentions of the respondent and her parents and so the petitioners parents asked them not to insist on taking away even the remaining cloths of the respondent as that would mean scrapping of ties, between the parties. At this, the mother and the sister of the respondent adopted a very quarrel some attitude and started raising their voice, at which the father of the petitioner had to persuade them not to create a scene and go back without creating any unpleasantness any further. About this incident, in keeping with their habit, they prorogated that they were treated rudely. On 16.10.81 Smt. Kumkum, the respondent telephoned and displayed abusive and obnoxious attitude towards the petitioner and his parents, but the petitioner exercised restraint and was greatly depressed. 15. About this incident, in keeping with their habit, they prorogated that they were treated rudely. On 16.10.81 Smt. Kumkum, the respondent telephoned and displayed abusive and obnoxious attitude towards the petitioner and his parents, but the petitioner exercised restraint and was greatly depressed. 15. That thereafter, after about a week the petitioner further called upon the respondents father to send her back, but he declined the request on the plea that as she was in advanced stage of pregnancy she could not be sent and moreover as per the custom the first child would be delivered at their place (respondents parents). That as regards the birth of the male child to the respondent on 2.11.81 (the only one out of the wedlock) subsequently, the petitioner was not even informed about it and was not invited on any ceremonies and came to know of it only through common relatives in a marriage. .16. That thereafter, whenever, the petitioner and his parents made an attempt to visit the child, their attempts were foiled by imposition of pre-conditions like the petitioner should separate from his parents and start living elsewhere etc. which being an absolutely unjust and harsh demand could not be met. That in fact the whole trouble had started immediately after the marriage of the parties hereto, as on or about 8.12.80, they demanded the petitioners salary from him and was being misguided and provoked by the respondents parents and younger sister Miss Sweety, from the very beginning as they had found a gold mine in the petitioner - he being the only son of his parents and theirs being a pretty large family. The relatives and servants of the petitioner heard from their own ears that the mother of the respondent had been telling the respondent to insist on separation from has in-laws, even during her stay at the petitioners house, which practice on the part of the parents of the respondent was also very much unlike Hindu Samdhees, and which too was not objected to only with a view to maintaining the family calm and happiness and not to offend the respondent. Even whenever Smt. Kumkum telephoned the petitioner, she insisted that either the petitioner should live separately or accept divorce by mutual consent, failing which she would neither return nor let him live in peace. Even whenever Smt. Kumkum telephoned the petitioner, she insisted that either the petitioner should live separately or accept divorce by mutual consent, failing which she would neither return nor let him live in peace. Seeing this harsh and in human attitude of the respondent and her parents, the petitioner stopped making any further moves for rapproachment & reconciliation and thought that time would prove to be a great heal but it was not to be. That thus after waiting for sometime, when the petitioner found that the matters didnt improve, the petitioner and his parents sent Sh. Sardar Bahadur Bhatnagar, the petitioners maternal uncle and Sh. Shiv Kumar Mathur, through whom this marriage had been arranged to the respondents place at 202 A, Old Gupta Colony on 13.4.82 for making the .respondent and her parents see reason and requesting them to send her back to fulfill her matrimonial obligations (although even during her stay at the petitioners place she had not been discharging her matrimonial obligations sincerely, as she would quarrel on one or the other pretext and would not get up in the morning and would be in bed till about 9 A.M. and would not even prepare the petitioners breakfast or lunch or look after him and attend to other household chores), but they were treated very rudely and ultimately they were insulted and asked to quit. The situation had become so explosive, and had these two emissaries of the petitioner not shown and exercised restraint, a skirmish/flight would have taken place - thereafter they telephoned petitioners place to state "Aaindaa Kisi ko naa bhejna, varna hum aur bhi sakhti se pesh aaeinge". After this warning, the petitioner could not dare to approach the respondent and had no option in his extremely dejected and depressed state of mind, but to pray to God Almighty to bestow proper reasoning to the respondent." .17. This petition filed by the appellant was also contested on merits by the respondent. After this warning, the petitioner could not dare to approach the respondent and had no option in his extremely dejected and depressed state of mind, but to pray to God Almighty to bestow proper reasoning to the respondent." .17. This petition filed by the appellant was also contested on merits by the respondent. The respondent also seriously refuted the said allegations of the petitioner in her written statement by giving a detail reply and it would be appropriate to reproduce some of the refutations made by the respondent in her written statement, which is as under: It is incorrect to say that on 9.7.1981, the respondent Smt. Kumkum left the petitioners house and deserted the petitioner by going away with her mother on the pretext that she wanted to go for a week-ten days and on her which statement/assurance she was given a cordial send off, as usual and the respondent carried away with her quietly, her jewellary and ornaments and costly clothes, her subsequent conduct showed and proved beyond any doubt that this was a well planned and premeditated move on her behalf in consultation/connivance with her parents etc. and she left the petitioners house i.e. the matrimonial home with a view to deserting the petitioner and without any just or reasonable cause and this act of desertion on the part of the respondent Smt. Kukum was thus entirely against the petitioners wishes and consent. 18. While dismissing the second petition of the appellant the learned Court of Shri S.M. Shukla, learned Additional District Judge found that the second petition filed by the appellant based on the same cause of action was not maintainable in the eyes of law. Reference is invited to the following para from the said judgment: The parties have been living separately since long and no new facts corresponding to the ground of cruelty or desertion could either arise or be agitated by the husband against the wife and it is wrong to assume that even over two years a fresh petition for divorce on the ground of desertion would be filed after dismissal of the earlier petition on 28.1.1987. That would be possible only if the parties have resumed co-habitation and have subsequently fallen apart. That would be possible only if the parties have resumed co-habitation and have subsequently fallen apart. The cruelty aspect similarly could not be agitated again in the absence of any resumption of co-habitation and in the absence of any new act or omission attributed to the wife by the petitioner/husband. There has been no change in the fact situation on either of these two grounds and the statutory position has also not changed which might justify filing of a new petition on the same old facts. 19. In the third petition as well, which is under consideration, the appellant reiterated the same cause of action as was earlier alleged in the previous petitions attributing desertion on the part of the respondent w.e.f. 9th July, 1981. The matter was again contested by the respondent and vide the impugned judgment, the learned Court of Ms. Anju Bajaj Chandna dismissed the petition of the appellant, the same being not maintainable in view of the principle of rest judicata. While dismissing the petition of the appellant the cost of Rs. 10,000/- was also imposed upon the appellant. 20. The aforesaid narration of sequence of events would clearly show that based on the same cause of action the appellant had filed three successive petitions. Indisputably the lis is between the same parties and the issue of desertion has also been one of the main grounds in all the three petitions filed by the appellant. It is also not in dispute that previous two petitions were decided by the Court of competent jurisdiction and both the earlier petitions had attained finality between the parties. In the face of all this, it is beyond comprehension as to how the principles of rest judicata do not get attracted to the facts of the present case. 21. For better appreciation of the said equitable principle it would be appropriate to reproduce the relevant Section i.e. Section 11 of the Code of Civil Procedure. 22. rest judicata. In the face of all this, it is beyond comprehension as to how the principles of rest judicata do not get attracted to the facts of the present case. 21. For better appreciation of the said equitable principle it would be appropriate to reproduce the relevant Section i.e. Section 11 of the Code of Civil Procedure. 22. rest judicata. No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I- The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III.- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV.- Any matter which might and ought to have been made ground of defense or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation VI- Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and Ors. , all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. 1[Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. 1[Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as rest judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.] The principle of rest judicata is founded on public policy so as to dissuade the parties not to litigate or raise controversy again on the issues which were directly or substantially decided between the parties in the previous litigation by the competent Court of jurisdiction. Section 11 contains the rule of conclusiveness of the judgment which is based partly on the maxim "Interest reipublicae ut sit finis litium (it concerns the State that there be an end to law suits) and partly on maxim "Nemo debt bids vexari pro una at eadem cause" (no man should be vexed twice over for the same cause). The doctrine of rest judicata or constructive rest judicata pre-dominantly is a principle of equity, good conscience and justice. It would neither be equitable nor fair nor in accordance with the principles of natural justice that the issue concluded earlier ought to be permitted to be raised later in a different proceeding. The principle of rest judicata as contained in Section 11 CPC bars the Court to try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. A finding which has attained finality operates as rest judicata. 23. A finding which has attained finality operates as rest judicata. 23. In Guda Vijayalakshmi v. Guda Ramachandra Sekhara Sastry: [1981]3SCR223 the Apex Court has held that the doctrine of rest judicata contained in Section 11 of the Code of Civil Procedure which partakes the character of substantive law is fully applicable to proceedings under the Hindu Marriage Act. It would be appropriate to refer to para 3 of the said judgment as under: 3. In our view, on proper construction of the relevant provisions it is not possible to uphold the preliminary objection. In the first place it is difficult to accept the contention that the substantive provision contained in Section 25, CPC is excluded by reason of Section 21 of the Hindu Marriage Act, 1955. Section 21 of the Hindu Marriage Act merely provides: "Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908." In terms Section 21 does not make any distinction between procedural and substantive provisions of CPC and all that it provides is that the Code as far as may be shall apply to all proceedings under the Act and the phrase "as far as may be" means and is intended to exclude only such provisions of the Code as are or may be inconsistent with any of the provisions of the Act. It is impossible to say that such provisions of the Code as partake of the character of substantive law are excluded by implication as no such implication can be read into Section 21 and a particular provision of the Code irrespective of whether it is procedural or substantive will not apply only if it is inconsistent with any provisions of the Act. For instance, it is difficult to countenance the suggestion that the doctrine of rest judicata contained in Section 11 of the Code which partakes of the character of substantive law is not applicable to proceedings under the Act. rest judicata, after all, is a branch or specie of the Rule of Estoppel called Estoppel by Record and though estoppel is often described as a Rule of evidence, the whole concept is more correctly viewed as a substantive Rule of law. [See Canadian and Dominion Sugar Co. rest judicata, after all, is a branch or specie of the Rule of Estoppel called Estoppel by Record and though estoppel is often described as a Rule of evidence, the whole concept is more correctly viewed as a substantive Rule of law. [See Canadian and Dominion Sugar Co. Ltd.: [1956]1SCR838 - Canadian National (West Indies) Steamships Ltd.] 24. There cannot be any dispute to the settled legal position that there can be no bar on the filing of the subsequent petition. Nevertheless, such a petition has to be based on a fresh cause of action. Fresh cause of action is thus determinative factor to test the maintainability of a petition as to whether the same is hit by the principles of rest judicata or not. In the facts of the present case, in the two previous petitions filed by the appellant, the appellant based his cause of action on the same very grounds as has been set up by him in the third petition, which is under question. The previous two petitions filed by the appellant have already attained finality and thereforee, the learned Trial Court has rightly concluded that the third petition filed by the appellant was hit by the principles of rest judicata and was not maintainable in the eyes of law. I, thereforee, do not find any illegality or perversity in the said decision of the Trial Court. 25. On the second issue raised by the appellant that the marriage between the parties has practically broken down irretrievably and thereforee, such a marriage which has practically become dead should be directed to be dissolved. It is no doubt true that the Apex Court in plethora of cases has granted decree of divorce on the ground of irretrievable break down of marriage between the parties, but in all such cases the Apex Court found that there were sufficient incidents of cruelty due to which the matrimonial bonds between the parties were ruptured beyond repair and the parties were left with no feeling or emotion towards each other. Although not exhaustive but some of such incidents of causing mental cruelty have been spelled out by the Apex Court in a recent decision reported in: (2007)4SCC511 titled Samar Ghosh v. Jaya Ghosh, Para 101 of the same is reproduced as under: 101. Although not exhaustive but some of such incidents of causing mental cruelty have been spelled out by the Apex Court in a recent decision reported in: (2007)4SCC511 titled Samar Ghosh v. Jaya Ghosh, Para 101 of the same is reproduced as under: 101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behavior which may be relevant in dealing with the cases of "mental cruelty". The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive: .(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. .(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. .(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. .(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. .(vi) Sustained unjustifiable conduct and behavior of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. .(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty. .(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty. .(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behavior of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. .(xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty. 26. In the facts of the present case, I do not find that the appellant has ever succeeded in establishing the grounds of cruelty against the respondent or the ground of desertion. The appellant cannot be given advantage of his own wrongs and follies more particularly when the previous decisions between the parties attained finality. There is no merit in the present appeal and the same is hereby dismissed. Appeal dismissed